Sexual Harassment in The Workplace. EEOC and Title VII

I wanted to share something with you guys. WordPress keeps telling me the readability “needs improvement” in large red letters. Well thats because ITS BORING. It is my masters independent research project. There are no pictures, or headings with the appropriate amount of words underneath (because there are thousands of words underneath bitches). Anyways, this took me four entire months, draft after draft, sweat, panic, citations, more panic about accidentally plagiarizing, eye strain, probably carpal tunnel from typing eight thousand words, and ignoring my friends. But I got through it, and turned it in, and realized I did all that work and research for a grade and my professor to read it. Back to the external hard drive to collect dust. Um, no thank you. Im going to leave it here so that you all can read ALL OF IT, my entire 27 page paper, because you LOVE ME. Also, who knows, maybe this could be a good resource for someone, scholarly or real life. Enjoy.

(I’ll add a couple pix, maybe it will bump up its “readability”)

Also a special thank you to Professor Nicole Porter, who helped me every step of the way and made sure I didnt accidentally plagiarize.

Introduction:

Sexual harassment in the workplace is a very broad topic. In this paper, I want to outline what constitutes sexual harassment. I will do this by going through two different topics within sexual harassment, quid pro quo and hostile work environment, to show what protections are offered in each topic. I will explain what sexual harassment is, the categories of sexual harassment in the workplace, co-worker harassment, anti-retaliation laws, and employer liability. I will also briefly touch on a sexual harassment case that has been in the media spotlight at the time of writing this paper.

Basics:

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.[1] The EEOC enforces Title VII in the workplace, which includes sexual harassment as a type of sex discrimination.[2] That is because if someone is being sexually harassed, they are being targeted because of their sex, and the harasser’s preference for that sex.[3] Workplace sexual harassment is a broad problem, and Title VII has many protections in place to eliminate workplace sexual harassment.

Title VII makes it unlawful to discriminate against someone based on their sex.[4] This includes sexual harassment, which is a type of harassment based on sex. Sexual harassment can be defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.[5] However, just because the Supreme Court made sexual harassment in the workplace unlawful in Meritor Savings Bank, FSB v. Vinson,[6] does not mean it has stopped happening. In 2017 over 12,000 employees filed a charge with the EEOC alleging sex-based discrimination and over half those claims were claims of sexual harassment.[7] The most common type of sexual harassment publicized is women victims being harassed by men in positions of power. However, there are many different variations of sexual harassment. While women victims are the most common, there are reported incidents of male victims as well; over 16% of the sexual harassment claims filed with the EEOC in 2017 were filed by men.[8] Alongside that, it is also harassment if the unwanted advances come from someone of the same sex. Workers can be harassed by other co-workers, and also by supervisors.

Categories of Workplace Sexual Harassment

Workplace sexual harassment is usually sorted into one of two categories: hostile work environment or quid-pro-quo.[9] According to Meritor Savings Bank v. Vinson[10] in order to bring a hostile work environment claim, the alleged harassment has to be so severe or pervasive that it alters the terms of employment. One offensive comment would not lead to a valid claim of a hostile work environment.[11] This may seem unfair on its face, because harassment is harassment. However, for the sake of workplace harassment, the harassment must actually interfere with work and it would be hard to argue that one single comment would cause the work to suffer as a whole.[12] However, enough comments and instances to one person could be seen as pervasive enough to bring a claim. There are some circumstances where one single action could be severe enough to bring a claim.[13] The severe or pervasive requirement does not explicitly state what is either severe or pervasive, however there are ways to make determining that easier.

The plaintiff in a hostile environment claim must generally prove three main things: (1) Plaintiff was subjected to unwelcome harassment; (2) The harassment was because of a protected trait; and (3) the harassment affected a term, condition, or privilege of employment.[14] The order and over all articulation of this test may vary court by court but the basis remains the same.[15] The elements maybe organized differently, or worded differently but the three main issues of a hostile work environment claim remain the same. Those three issues are: Whether the conduct was unwelcome; Whether the conduct was because of a protected trait; and whether the conduct was severe or pervasive enough to alter the terms and conditions of the employment.[16] Thanks to Title VII, pretty much everybody is part of a protected class. However, that does not mean that the conduct was because of the protected trait. The best example is if someone is both sexually harassing men and women, you are no longer being harassed because of your protected trait (sex), because the harasser in this scenario is harassing the other sex as well.

Within a hostile work environment claim, there is a test to determine if the harassment is actually severe or pervasive enough to warrant a claim. The first part of the test the plaintiff needs to meet is the subjective standard test.[17] This means that the plaintiff bringing the suit forward must have found the work environment to be abusive.[18] These seems like it would go without saying, but if someone does not personally find the work environment to be offensive, they cannot bring a claim. This could be demonstrated in instances where someone else tells the plaintiff something along the lines of “well, if it were me I would be offended.” This could cause the plaintiff to think that if someone else finds it offensive, even if they personally do not, they could possibly bring a suit forward. It could also present itself if someone wanted to bring a suit on behalf of someone else. Perhaps the harassment is not happening to you, nor does it affect your work, but it is happening to a coworker. You cannot bring a hostile work environment claim because if it is not actually your work environment that is hostile, but rather, it is your coworker’s environment that is hostile.

The second part of the test the plaintiff would have to meet is the objective standard test.[19] The objective standard test looks to see if a reasonable person would also find the work environment abusive.[20] This is an easy way for the courts to determine if the claim is appropriate. If it can be determined that a reasonable person in the plaintiff’s situation could find the alleged behavior abusive enough, the plaintiff would have an easier time making their case. It would be hard for the court to deny that the workplace was abusive and hostile when there is a group of people, in the same protected class, claiming that they would also find the workplace hostile.

The objective standard test was clarified in Harris v. Forklift Systems, Inc.[21] In Harris it was argued that the hostile workplace environment claim had to greatly affect the plaintiff’s psychological well-being or had lead the plaintiff to suffer some type of other injury.[22] This standard was problematic for several reasons. The most concerning consequence of this standard would be that the plaintiff would have to endure the harassment until it got to the point of being damaging. The plaintiff would have to wait until the harassment reached an alarming level, just to bring the suit. That would cause an unnecessary toll on the plaintiff’s well-being. As decided in Harris, the standard is that as long the work environment could reasonably be perceived, and was in fact perceived, as hostile or abusive, it is not necessary that it be psychologically injurious.[23] This is a much better standard for the well-being of the employees in question. If a reasonable person could also perceive the situation as hostile or abusive, it does not need to reach the point of internal destruction for the plaintiff to bring their claim.[24] Title VII does not require the victim suffer an actual harm. Title VII just prohibits actual discrimination, which a hostile work environment would definitely constitute as.

The conduct also has to be unwelcome.[25] An employee cannot welcome the conduct and enjoy the conduct, while also filing a harassment suit against it.[26] It goes back to the subjective test; the employee has to find the conduct personally offensive in order to succeed. If the relationship starts as consensual, the employee must be able to prove that they communicated to the harasser that the conduct was no longer welcome.[27] Within hostile environment claims, the courts just want to make sure the offensive conduct has interfered with the employee’s ability to do their job.

Quid pro quo harassment is the second category of workplace harassment. Quid pro quo is restricted to only sex motivated cases, because quid pro quo requires something in exchange for something else.[28] Quid pro quo translates to “something for something.”[29] In terms of sexual workplace harassment however, quid pro quo means someone in a position of authority demands sexual favors from someone in a subordinate position, then bases employment decisions on how the subordinate responds.[30] This is like when a supervisor requests sexual favors from an employee, and upon the employee’s refusal, the supervisor takes a negative action against them. Any actual change that has an adverse effect on the employee’s job, is a tangible employment action.[31]

A tangible employment action could be several different things, as long as they negatively impact the employee, and it is relevant for determining whether an employer is liable for harassment. While the most serious tangible job employment would be firing, it could also include “hiring, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”[32] For example, a supervisor approaches a waitress and tells her, if she engages in sexual favors she will get a raise. However, the waitress refuses the offer. The supervisor then moves the waitress from the night shift, to the day shift, which directly decreases how much in tips she will make. That scenario, including a promised benefit and then a negative action at the woman’s refusal would be a tangible action under quid pro quo.

However, when the subordinate employee accepts a tangible job benefit from the supervisor, in exchange for their agreement to be in a sexual relationship, whether or not the employee can bring a sexual harassment claim when the relationship ends depends on who ends the relationship.[33] An employee who enters into a sexual relationship in exchange for a tangible job benefit, has no sexual discrimination claim if they are demoted when the supervisor ends the relationship.[34] This rule would help stop malicious claims from being brought forward. An employee engaged in a sexual relationship, whether for a tangible benefit or not, could become scorned if the supervisor decides to end it for whatever reason. The employee, whether angry about the emotional and sexual relationship ending or the loss of the tangible benefit, could seek out a sexual harassment claim and try to reap benefits from that. That is not what quid pro quo is meant to protect. The employee was not offended, nor did they find the actual sexual conduct abusive or offensive, which is what is meant to be protected. On the other hand, if the employee ends the consensual relationship or refuses to continue, and then suffers a tangible employment action that is detrimental to the employee, that could be sex discrimination.[35] As opposed to the previous example, the employee would be punished for refusing to have a sexual relationship with their supervisor. That is exactly what quid pro quo harassment means.

When bringing a quid pro quo case, the plaintiff generally has to prove that “a supervisor requested sexual favors, the subordinate employee rejected that request, the supervisor then took adverse action against the subordinate, and the subordinate’s rejection of the request cause/motivated the adverse action.”[36] The main requirement to claim quid pro quo is that there has to be a tangible and adverse employment action. Without a tangible action, the claim could be brought up as a hostile work environment claim.[37] However, the requirement for quid pro quo differs greatly than hostile work environment. “A plaintiff making a quid pro quo claim need not prove that the conduct was severe or pervasive enough to create a hostile or abusive work environment, “‘because any carried-out threat is itself deemed an actionable change in the terms or conditions of the employment.”’[38] For quid pro quo, there just needs to be a clear conversation that explicitly states benefits in exchange for sexual favors. In Nichols v. Frank[39] the court stated that a supervisor’s intertwining of a request for the performance of sexual favors with a discussion of actual or potential job benefits or detriments in a single conversation constitutes quid pro quo sexual harassment.[40] This differs greatly from hostile work environment where one conversation is not enough to constitute harassment. This is because, although it is just one conversation, the supervisor is explicitly making their intentions clear. The tighter the nexus between a discussion about job benefits and a request for sexual favors, the more likely that there has been an “implicit” conditioning by the harasser.[41] Whereas in hostile environment, the supervisor or employee is not explicitly stating any motives, they are just making an isolated comment. While that conduct is still not acceptable, it is not actionable by itself.

The most difficult part of a quid pro quo claim, is proving that the adverse action was taken against the plaintiff because they refused the request. Direct evidence is very rare in cases like this. That is due to the fact the supervisor is not going come right out and say they took an adverse action against an employee because they refused a sexual relationship. The employer generally will present a different reason for the termination, whether it is accurate or not. The employee still has ways of proving quid pro quo however. One way to prove that the rejection of the request caused the adverse employment action would be to prove the close proximity of both actions.[42] If the supervisor requests sexual favors from the employee, the employee refuses, and then the next day the employee is fired, the employee would probably have enough evidence to bring the claim forward. Direct evidence can also be found, for example, after presenting the close proximity of the rejection and the adverse action, and the employer being unable to articulate a legitimate and nondiscriminatory reason for the adverse action.[43] That would greatly benefit the employee because if the employee suffers a tangible employment action, and the employer is unable to articulate why to the court, it is usually a good indicator of wrongdoing.

Employer Liability:

Even if the plaintiff can prove an actionable sexual harassment claim, “[c]ourts generally agree that Title VII and the other federal employment discrimination statutes do not allow recovery against the discriminating wrongdoer in an individual capacity.”[44] This opens up a new question of whether or not the employer should be held liable for the individual’s actions. Some cases are much easier to prove than others. The employer could be held vicariously liable if the supervisor took a tangible employment action against the victim.[45] This is an easier case to prove because the supervisor would be using powers that were granted to them by the employer to harass the victim.[46] This is why prior to 1998, in quid pro quo cases liability was always extended to the employer because the supervisor was using the power delegated to them to demand sexual favors.[47] Hostile environment cases are more difficult for plaintiff because the harasser is not actually using powers delegated to them in order to effectuate the harassment.

The harder question is, just because a supervisor uses their powers during the incident does that explicitly mean the employer is liable? The supervisor may use powers delegated to them, but the employer never delegates the power to harass somebody.[48] This would mean that the conduct of harassment is not within the supervisor’s scope of employment. The employer can be liable for wrongdoings that the employee commits while in the scope of their employment.[49] Since harassment is not within the scope of employment for any job, the harassment is said to occur out of individual desire.[50] In Faragher v. City of Boca Raton the Court held that sexual harassment was generally a “frolic and detour” which means that the employer cannot be held liable.[51] Frolic and detour would mean that the supervisor stopped acting in their official capacity when they started to harass the employee. The employer could argue that the supervisor was not acting in an official capacity, nor does the harassment benefit the interest of the employer.

While the employer does have good arguments against vicarious liability, they can still be found liable for the supervisor’s actions. The Court in Faragher adopted a test for employer liability when the harasser is a supervisor. The employer will automatically be held liable if a tangible employment action was taken. That is because the supervisor would be acting in the scope of their employment by taking an official tangible action against the employee.[52] While the employer could argue the harassment was not in the scope of their employment, tangible employment actions are hard to defend. However, if there is no tangible employment action, the employer has the burden of proving a two-part affirmative defense or else they will be held liable.[53]

The first prong of the affirmative defense is whether or not the employer took reasonable care to prevent and correct the harassing behavior.[54] Something the employer could do to prevent harassing behavior would be to adopt some type of anti-harassment policy. If the employer implemented a policy and educated everyone on the policy it would show the court that they have taken some steps to prevent sexual harassment in their workplace. If the harassment has already happened, they need to show that they tried to correct the behavior of the harasser.[55] The employer must also have a reporting system available to the employees to prevent and correct. Informing employee’s that they can safely report sexual harassment even if it is a supervisor is important. An employer should “take all steps necessary to prevent sexual harassment from occurring, such as … informing employees of their right to raise and how to raise the issue of harassment.[56] If the employer knows of harassment, they should reprimand the employee doing the harassing. The employer could fire them, suspend them, or take any kind of action against the harasser, depending on the severity of the harassment and whether or not this was the harasser’s first offense. However, if a case has reached the court there is usually some indication that the plaintiff thinks the employer did not do enough. It is also possible that the employer was not aware of the conduct happening. The court would then look to find out if the employer knew or reasonably should have known the conduct was taking place. If harassment is reported in the workplace and the necessary steps are not taken, or the report is ignored, the employer would be found to have reasonably known about the harassment and be found to have not taken the correct steps to prevent the behavior.[57]

The second prong of the affirmative defense announced in Faragher is that the employer must prove that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.[58] This is why the first prong is so important for employers to implement. If the employer takes all the necessary steps to have prevention and correction policies in place, and an employee for some reason chooses not to use them, it would be hard to hold the employer liable. The court would need to look at what exactly happened in the incident. Did the employee try to tell someone of the harassment? How long has it been going on and how much has it impacted their work? Is there a reason that they did not report it? These are all important questions and it would help to figure out if the employee knew, and decided not to use the safeguards provided to them by the employer. The employee could have several, personal, reasons for not using the safeguards, but that does not mean the employer did not provide them.

Harassment by A Coworker or Third Party

When an employee is harassed by a co-worker or a 3rd party, the employee has the burden of proving the employer was negligent in addressing the harassment in order to prove the employer liable.[59] The employee must prove the employer knew or should have known of the harassment and did not take the necessary steps to remedy it. One way the employer could be found negligent is if they engage in negligent hiring. Negligent hiring would mean that the employer knew or should have known about an employee’s troubled or dangerous background and hired that employee anyway.[60] An example in the context of sexual harassment would be if an employer hired somebody who had been found to engage in harassment at a previous employer, and that person sexually harassed another co-worker. That co-worker could have a negligence claim because the employer should have known that harassment was going to take place and could have reasonably prevented it by not hiring that person. Another large way an employer could be found negligent is if they stand by and do nothing when they have received notice of the harassment.[61] The employer could have been notified directly by the victim, or they could have found out through constructive notice, which would mean the employer should have reasonably been aware of the harassment based on the actions going on in the workplace.[62] If the employer is aware by either of those standards, they are obligated to do something to remedy the situation in order to not be liable. The employer can switch workers shifts so they are not working together, the employer could even fire the harasser but they cannot sit by and let the situation work itself out once they have become aware of the harassment. The alleged victim has the burden of proving that the employer knew or should have known about the harassment, and did nothing.[63] If the victim can prove those facts, the employer could be found liable for the harassment of a worker.

Who Qualifies as A Supervisor

Employer liability often hinges on whether the harasser is a supervisor or not. This leads to the sometime difficult issue of determining who actually qualifies as a supervisor in a Title VII suit. In Vance v. Ball State University,[64] there was a circuit split regarding how to define “supervisor.” Some courts held that a supervisor is someone who has the ability to make a tangible employment action decision.[65] Other courts followed the more open-ended approach advocated by the EEOC where a supervisor is someone who has the ability to exercise control over an employee’s daily work.[66] Ultimately, in Vance, the Supreme Court upheld the decision that a supervisor is someone who has the ability to take tangible employment actions against the employee.[67] This seems like a necessary distinction for the court to make, because there are such different levels of liability for co-workers and supervisors, that there should be a clear distinction. Many cases would be brought to court to litigate who is and is not a supervisor solely because the levels of liability are vastly different. The Court made that decision so that they would not have to take these claims on a case by case basis. The court reasoned that, generally, co-workers are not as intimidated by each other as they are of their supervisors.[68] Therefore, a coworker would feel more comfortable reporting another co-worker for sexual harassment because of the fact that their co-worker cannot take a tangible employment action against them. It is generally the fear of a tangible employment action that makes subordinates reluctant to report their supervisors for sexual harassment, which makes the Supreme Court’s decision logical in that sense.[69]

However, there are shift managers, and other supervisors who cannot take employment actions but are still in charge of the employee while they are both there. “[A]lthough a supervisor may not have the authority to discharge or demote the victim, a supervisor who can effect change in the victim’s working conditions has similar power over the victim.”[70] Just because supervisors in those instances cannot take tangible employment actions against the employee, does not mean the employee does not see them as supervisor. The day to day supervisors still have the ability to make the work day unbearable for the employee, because they are in charge of the employee’s day to day activities. An employee would still consider it a risk to stand up to these day to day supervisors, just like they would an actual supervisor. This is because those day to day supervisors can control that employee’s workday.

Same Sex Sexual Harassment

While sexual harassment is majority male to female, Title VII covers all variations of sexual harassment. The first case to challenge the harassment of the same sex is Oncale v. Sundowner Offshore Services, Inc.[71] Prior to this case it was thought that a person could not sexually harass someone of the same sex.[72] This could trace back to the idea that protected traits would not discriminate against each other, which we know to be false. The issue in Oncale really comes down to whether the conduct occurred because of sex. “It makes no difference that the harasser is the same sex as the victim.”[73] There are three ways to prove that the harassment happened “because of” sex: (1) The conduct was motivated by sexual desire; (2) Need not be motivated by sexual desire if you can prove that you were harassed in sex specific and derogatory terms so as to make it clear that harassment was because of sex; or (3) Direct comparative evidence of treatment in both sexes.[74] Being motivated by sexual desire is generally implicit when sexual favors are being request from males to females. However, that distinction gets blurred when it is two people of the same sex. That would bring in having to prove someone sexual orientation, which could be complicated and invasive. However, it does not have to be because of sexual desire, it just has to be able to be proven that it is because of the persons sex, in any aspect.[75]

Retaliation

Despite all of these rules, regulations, and remedies most workplace sexual harassment still goes unreported. In a study taken in 2015, 1 in 3 women admitted to being sexually harassed at work, but 71% of those women did not report it.[76] There could be several reasons why people choose not to report sexual harassment. They could feel embarrassed or ashamed of the harassment, they may not know how to properly report it, or they may fear retaliation. An example of retaliation would be an employee reported sexual harassment and the employer then fired them. Retaliation is not only illegal against current employees, but the retaliation provision also covers applicants and past employees.[77]

Section 704(a) of Title VII states that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment. . . because he has opposed any practice made an unlawful employment action because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”[78] If a plaintiff brings a retaliation suit against their employer, they will typically have to prove three steps: (1) Whether the employee engaged in a protected activity under Title VII; (2) Whether the employee suffered a materially adverse employment action; and (3) whether a causal link existed between the protected activity and the adverse employment action, which is to say that the protected activity motivated the adverse employment action.[79] The employee has the burden of proving those three things in order to have a successful retaliation claim.

The first element the plaintiff has to prove revolves around whether not the employee engaged in a protected activity.[80] The statute recognizes two types of protected activity, that means the employer cannot retaliate against the victim if they use one of those two avenues.[81] If the victim uses something else other than the two recognized activities, the employer is free to take action against that employee. The two activities that are recognized are: participation and opposition.[82]

Participation activity means that the employee participated in filing a discrimination charge with the EEOC or some other type of state agency.[83] Participation activity is very protected by the courts. Here, the employee is using the proper channels in order to report and correct the sexual harassment. Participation activity is seen as using the more serious option available. This type of activity receives a blanket protection, even if the conduct in question did not violate the statute or even occur at all.[84]

Opposition activity is less formal than participation. Opposition usually refers to an activity where the plaintiff has used a more informal manner to report the behavior.[85] Some examples of opposition activity are the plaintiff reporting the behavior to their human resources representative, or even just reporting it to management. This activity is less protected than participation activity, because it is so unclear and often litigated in court.[86] The plaintiff needs to reasonably believe that the conduct they are challenging truly did violate the statute.[87] The courts will usually look and see if the conduct was severe and pervasive enough to violate Title VII, and whether or not a reasonable person would believe Title VII had been violated.[88] However, certain opposition conducts will not be covered, such as any opposition that is illegal or that severely violates the company’s policy.

While those cases have focused on the first element, the second element according to Burlington Northern & Santa Fe Railway Co. v. White[89] is that both of these protected activities require an adverse employment action. There cannot be a true retaliation, without a tangible retaliation. The actual threat of retaliation is not enough, because technically the plaintiff was not retaliated against. Threats of retaliation if the plaintiff files a report could be categorized as a hostile workplace environment if it is severe or pervasive enough.[90] In the holding of Burlington the court decided two issues: If the harms they suffered must be related to the workplace, and how harmful those actions must be.[91] The court decided that Title VII also prohibits any type of retaliation that takes place outside of the workplace.[92] It would seem ineffective if the employer was barred from retaliating within the workplace, but could retaliate freely as long as it didn’t fall within the terms and conditions of the plaintiff’s employment.

The actions must be harmful enough that “a reasonable employee would have found the challenged action materially adverse.”[93] That is to say that the action must be severe enough that it might stop other employees from reporting discrimination or harassment.[94] If other employees see that they would be retaliated against for reporting, it is very likely they would be very reluctant to report, which is what anti-retaliation laws are trying to prevent. This means that small comments here and there would not be enough to for a retaliation claim because it might not be enough to dissuade other employees from reporting.[95] The level of harm is different for different people. Burlington uses a modified objective test, where it is looked at from the perspective of a reasonable person in the plaintiff’s shoes.[96] For example, changing someone’s schedule might not seem severe enough to warrant a retaliation claim, however for a student a schedule change might be a large burden on their ability to work, which could constitute as retaliation.

The third element the plaintiff needs to prove is the hardest. The plaintiff needs to prove that they suffered the adverse employment action because they engaged in a protected activity.[97] Just like in quid pro quo, direct evidence in this case will be rare because the employer will not be eager to admit that they violated the statute. Aside from a written confession from the employer, temporal proximity (again) is another way to prove the plaintiff was retaliated against.[98] If the plaintiff filed a report of sexual harassment and two days later the plaintiff was fire, there will be some raised eyebrows of why. If an adverse action was taken within close proximity the courts will have an easier time seeing the causal link, however there is no set-in stone time frame to prove it, but most courts will say anything past three or four months is too far out to show a causal link.[99] That element is very similar to the element needed in quid pro quo. However, there is another way an employee can prove the causal link between the protect action and the adverse effect. The plaintiff can show that another employee, who situated similarly to the plaintiff, who had not engaged in any protected activity was not subjected to any adverse action.[100] The employer will have a hard time arguing they took an adverse action on the employee because of a reason that another employee is also engaged in, that did not suffer an adverse action. For example, if the employer said the plaintiff was late and that is why they took an adverse action against them, the plaintiff can then find someone, similar to themselves, who was also late and raise that question. Why would the plaintiff be fired for being late, if this employee is substantially similar to them and is also late but is not fired? It would raise some questions for the court on the employer’s true reason for the adverse action.

There is another form of retaliation that might be seen in the workplace. It is possible that an employer can take an adverse action against someone different than the person who engaged in a protected activity. In Thompson v. North American Stainless, LP a couple worked together, the fiancée filed a sexual harassment claim and Thompson was fired three weeks later.[101] The court said that Thompson was able to sue under retaliation even though he was not the person who engaged in the protected activity. Thompson explained that as long as someone is in the zone of interest, they can bring the suit themselves.[102] The retaliation statute was meant to make employees feel safe in reporting sexual harassment without fear of suffering an adverse employment action as a result of their honesty. It would be reasonable to assume that employees would be reluctant to report sexual harassment out of fear for those in a close relationship with them.[103] Even if the person who suffered the adverse action was not directly retaliated against, they were still used in order to achieve retaliation. The company intended to use the employee, as a means of retaliation against the original victim.[104]

Media Example

One of the cases being shown heavily in the media is the case of Matt Lauer. Matt Lauer was a co-host on an NBC talk show. It recently came to light that he may have sexually harassed fellow employees, who could be seen as subordinates because of Lauer’s prominence at the station. Some of the allegations include mailing a sex toy to a colleague with a note saying that he wanted to use it on her, and another instance where he exposed himself to an employee and then reprimanded the employee when she refused to do anything.[105] While the public was stunned of these accusations a former producer gave some insight that sounds very familiar to other sexual harassment cases. The former producer said that Lauer had “a lot of consensual relationships, but that’s still a problem because of the power he held.”[106] There is an inference that those relationships may not have been consensual, because the employees may have felt pressured to be in the relationship, or may have feared retaliation if they did not engage in the relationships because Lauer did have the ability to take adverse employment actions against them. The former producer also stated “He couldn’t sleep around town with celebrities or on the road with random people, because he’s Matt Lauer and he’s married. So he’d have to do it within his stable, where he exerted power, and he knew people wouldn’t ever complain.”[107] That could be seen as using the power given to him by NBC in order to receive sexual favors. Lauer’s conduct, from the examples given, could be seen as both hostile environment and quid pro quo. The quid pro quo allegations would seem easy to win under Faragher rules because Lauer was able to take adverse employment actions. Those factors could make victims fear adverse actions, so they may feel compelled to give in to demands out of fear.

Conclusion

Sexual harassment in the workplace is a serious issue. The EEOC and Title VII work together to protect the employee the best they can. Title VII makes it unlawful to discriminate against someone because of their sex, and sexual harassment is type of sex-based discrimination. That is because if someone is being sexually harassed, it is generally because of their sex. Different categories of harassment offer different avenues of reporting and legal recovery. Supervisor harassment is handled differently than harassment by other co-workers, and the amount of liability the employer holds hinges on that distinction. It is also important to know the distinction between hostile environment and quid pro quo harassment. Understanding those categories allows people to understand certain situations that would constitute as harassment that people would not have thought of. Anti-retaliation laws are also important to understand because fear of retaliation could stop people from coming forward. Reporting is a vital part of stopping sexual harassment. Employees can come forward and report sexual harassment, even if it is a supervisor, and not have to worry about losing their job. Sexual harassment in the workplace is an ongoing problem. However, with more knowledge on the topic available, I think situations could be more easily identifiable and victims would have the support they need to come forward.

[13] For example, a single rape could be considered a hostile work environment because it is severe enough that the plaintiff could find the environment abusive, and a reasonable person would also find the environment abusive. (Susan Grover, Sandra F. Sperino, and Jarod S. Gonzalez, Employment discrimination: a context and practice casebook (Durham, NC: Carolina Academic Press, 2014), 226.)

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M a d i s o n S h e l b y

I'm a *whispers* millennial, trying to navigate life with social anxiety, while drinking wine, being sarcastic, and saying cuss words. I love cooking, horror films, and helping people. So, let's help each other through this crazy journey!

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